Sam'l Bingham's Son Mfg. Co.

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wasserman left the meeting exclaiming that "he wasn't trying to shove it down us," and that "it was O. K. with him." The Board has held that a party or parties claiming a contract as a bar must sustain by a preponderance of the evidence the burden of proof that the contract was fully executed at the time alleged, and before demand for recognition was made by the petitioner.5 A con- tract duly executed, signed and dated received in evidence would, if unchallenged, make a prima facie case as to the date of its execution and signing. However, if evidence of sufficient probity and weight is introduced overcoming the prima facie case established by the contract itself, then the party or parties, claiming the contract is a bar, must meet and overcome such evidence. In view of the character of the evi- dence in the record on the issue of the contract's execution date, we conclude on the basis of the entire record that the Intervenor has not sustained the burden of proof on this issue and has failed to establish that the contract in question was, in fact, signed before the filing of the petition herein on August 6 and before the receipt by the Employer of the Petitioner's claim to recognition as the employees' bargaining representative. We find, therefore, that the contract in question is not a bar to this proceeding. Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find in accord with the agreement of the parties that the fol- lowing employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Brook- lyn, New York, children's novelties manufacturing plant, including shipping employees, but excluding office clerical employees, watch- men, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER took no part in the consideration of the above Decision and Direction of Election. 5 Dennis-Mitchell Industries, 101 NLRB 846. SAM'L BINGHAM'S SON MFG. COMPANY and LOCAL 388 OF THE INTERNA- TIONAL MOLDERS AND FOUNDRY WORKERS UNION, AFL. Case No. 7-CA-956. February 7,1955 Decision and Order On March 23, 1954, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 111 NLRB No. 82. SAM'L BINGHAM'S SON MFG. COMPANY 509 spondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (5) and (1) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report. The Respondent also filed a supporting brief. The Respondent's request for oral argument is hereby denied because the record and the exceptions and brief, in our opinion, adequately present the issues and positions of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : 1 We agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to bargain collectively with the Union which was certified by the Board on May 7, 1953, as the bargaining representative of the employees in the appropriate unit. However, we find it unnecessary to adopt his finding, which is based on the totality of the Respondent's conduct, that the refusal to bargain commenced on or about June 10, 1953.2 We find that the Respondent's refusal to bargain occurred at least on or about August 3, 1953, when the Respondent broke off negotiations with the Union be- cause "the extreme turn-over of personnel constitutes such an unusual circumstance as to seriously affect the status of the Union's certifica- tion." It is a well-established Board rule that, in the absence of unus- ual or special circumstances, a Board certification of a bargaining rep- resentative must be honored for a reasonable period, usually at least a year following the certification, despite evidence of repudiation or loss I Subsequent to the hearing , the parties stipulated that the Respondent , a multistate enterprise , annually ships directly from its various plants and branches to points outside the State in which such plant or branch is located , goods and products valued in excess of $250 , 000. Accordingly , we find that the Respondent is engaged In commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdic- tion over the plant involved herein. Jonesboro Grain Drying Cooperative , 110 NLRB 481. The Trial Examiner at some points in the Intermediate Report incorrectly describes the unit as including professional employees , plant guards, and supervisors as defined In the Act. The correct description , which is given in the Trial Examiner 's conclusions of law, is : All production and maintenance employees at the Employer 's Kalamazoo, Michigan, plant, including plant clerical employees , but excluding office clerical employees , profes- sional employees , plant guards , and supervisors as defined in the Act . The Trial Ex- aminer's inadvertence does not affect his ultimate findings or our concurrence therein. 2 Member Rodgers agrees that a refusal to bargain , In violation of Section 8 (a) (5) of the Act, is shown by : (1) The Respondent 's action on or about August 3, 1953, when it broke off negotiations with the Union because of the alleged "extreme turn -over of per- sonnel"; and (2) the Respondent's action in refusing to continue to negotiate because the Union had filed 8 (a) (5) charges. He would also find that none of the Respondent's other acts recounted in the Intermediate Report, whether considered individually or as a "totality," supports the conclusion that the Respondent refused to bargain with the Union. Accordingly, he would dismiss the complaint in this respect. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of majority by such bargaining representative.' Contrary to the Re- spondent's contention, the employee turnover during the 3-month period following certification does not constitute such an "unusual circumstance" that would relieve the Respondent from its obligation to bargain with the certified agent within the certification year. Nor, as the Trial Examiner found, does the fact that the Union had filed unfair labor practice charges against the Respondent alleging an un- lawful refusal to bargain warrant a continued refusal to bargain on the ground that the matter would be litigated in the Board proceed- ing.4 Accordingly, we find that the Respondent, by refusing on or about August 3, 1953, and thereafter to bargain with the Union violated Section 8 (a) (5) and (1) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Sam'l Bingham's Son Mfg. Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local 388 of the Inter- national Molders and Foundry Workers Union, AFL, as the certified exclusive representative of its employees in the following unit : All production and maintenance employees at the Employer's Kala- mazoo, Michigan, plant, including plant clerical employees, but ex- cluding office clerical employees, professional employees, plant guards, and supervisors as defined in the Act. (b) Engaging in any like or related acts or conduct interfering with efforts of Local 388 of the International Molders and Foundry Workers Union, AFL, to negotiate for or represent the employees in the afore- said Union as the certified exclusive bargaining agent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local 388 of the Inter- national Molders and Foundry Workers Union, AFL, as the certified exclusive bargaining agent of all employees in the bargaining unit described above in paragraph 1 (a) herein, with respect to wages, rates of pay, hours of employment, and other conditions of employ- ment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at Kalamazoo, Michigan, copies of the notice, attached hereto, marked "Appendix." I Copies of said notice, to be 3 The Baker and Taylor Co , 109 NLRB 245; Henry Heide, Inc ., 107 NLRB 1160; S. H. Kress & Company, 88 NLRB 293 at 299. 4 N L. R. B v. Taormina Company, 207 F 2d 251 (C. A. 5). In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." SAM'L BINGHAM'S SON MFG. COMPANY 511 furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent, be posted by the Re- spondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region, in writ- ing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT engage in any acts in any manner interfering with the efforts of Local 388 of the International Molders and Foundry Workers Union, AFL, to negotiate for or represent the employees in the bargaining unit described below. WE WILL bargain collectively upon request with the above- named Union as the exclusive representative of all employees in the bargaining unit described below with respect to wages, rates of pay , hours of employment , and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees at the Employer's Kalamazoo, Michigan, plant, including plant clerical em- ployees , but excluding office clerical employees, professional employees, plant guards, and supervisors as defined in the Act. SAM'L BINGIJAM'S SON MFG. COMPANY, Employer. Dated--------------- - By-------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE On September 30, 1953, upon charges filed by Local 388 of the International Molders and Foundry Workers Union; AFL, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Seventh Region (Detroit, Michigan), herein referred to as the General Counsel .512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Board, respectively, issued a notice of hearing and a complaint against Sam'l Bingham's Son Mfg. Company, Kalamazoo, Michigan, herein called the Respondent, alleging that it had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. 61 Stat. 136, herein referred to as the Act. With respect to the unfair labor practices the complaint alleges in substance that since on or about May 15, 1953, Respondent refused and at all times since, continu- ing to date, has refused and is now refusing to bargain in good faith with the Union as the representative of the employees in the bargaining unit.' Particular acts by Respondent constituting such a refusal to bargain in good faith include, but are not limited to the following: (a) Delaying and postponing (1) collective-bargaining sessions, (2) its response to Union's requests and demands, and (3) the submission of proposals and counterproposals requested by the Union for the purpose of pre- venting agreement and undermining the Union; (b) unreasonably limiting the du- ration of collective-bargaining meetings; (c) failing and refusing to respond to union requests and demands for replies to union proposals and demands; (d) failing and refusing to submit proposals and counterproposals requested by the Union; (e) meeting and purporting to bargain with the Union with a closed mind and fixed intention not to reach an agreement with it; (f) failing and refusing to incorporate in a collective-bargaining agreement terms and conditions of employment than pres- ently in existence in its plant; (g) refusing to meet and/or bargain with the Union because the Union had filed charges with the Board and conditioning the perform- ance of its obligations to bargain with the Union on the withdrawal or other dis- position of such charges; (h) questioning and denying Union's status as the labor organization duly designated by a majority of its employees in the appropriate bar- gaining unit, although the Union had been certified as such, by the Board; and (i) failing and refusing to meet and/or bargain with the Union as exclusive represent- ative of its employees in the appropriate unit, or in any other capacity. That by the conduct described above the Respondent violated Section 8 (a) (5) and (1) of the Act. On October 6, 1953, the Respondent filed its answer in which it admitted certain jurisdictional facts, and denied the commission of any of the alleged unfair labor practices. Affirmatively, it alleged therein that it did recognize, meet with, and bargain collectively and in good faith in every particular with the Union until such time as the Union ceased to represent a majority of the employees in the appropriate unit, at which time it was under no obligation to continue to bargain with the Union. Pursuant to notice a hearing was held in Kalamazoo, Michigan, on November 12 and 13, 1953, before the duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel at the hearing, and all parties were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the hearing the Gen- eral Counsel moved that the complaint be amended to conform to the proof as re- gards minor matters, such as names, dates, and the like. The motion was granted by the Trial Examiner. Counsel for the Respondent then moved that the complaint be dismissed in its entirety. Ruling on the motion was reserved by the Trial Exam- iner. It is hereby denied for reasons which will be apparent hereinafter. Though given an opportunity to do so all parties waived oral argument. The parties were ad- vised by the Trial Examiner of their right to file proposed findings of fact and con- clusions of law, with briefs in support thereof. Only counsel for the Respondent availed himself of this opportunity and a brief was filed by him with the Trial Ex- aminer on or about December 23, 1953. It has been given due consideration. Upon the entire record of the case, and from the Trial Examiner's observation of the witnesses, he makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The complaint alleges and the answer admits that Sam'l Bingham's Son Mfg. Company, the Respondent herein, is an Illinois corporation with its principal office and place of business in Chicago, Illinois. In addition it operates 15 branch plants and/or service establishments, herein called branches, in 14 States of the United States, including a branch at Kalamazoo, Michigan, herein called the Kalamazoo branch, at which plants and branches it is engaged in the manufacture, distribution, sale, and servicing of printers' rollers and related products. At all times material 1 See infra. SAM'L BINGHAM'S SON MFG . COMPANY 513 herein the Respondent has purchased, and caused to be delivered in interstate and foreign commerce to its various plants and branches directly from foreign countries and States of the United States other than the State in which such plant or branch is located, materials and supplies valued in excess of $500,000 annually. The Re- spondent at all times material herein through its various branches and plants sold materials and performed services in interstate a_d foreign commerce in the value of more than $200,000 annually. During the same period the Respondent's various branches and plants sold products and performed services in the value of more than $50,000 annually for customers, each of whom ships products valued in excess of $25,000 annually outside the State in which such customer is located. Insofar as the Kalamazoo, Michigan, plant is concerned (the subject of the instant proceed- ings) it received material valued at excess of $100,000 per annum from points out- side the State of Michigan and during the same period of time shipped products and rendered services in the value of more than $5,000. Upon the foregoing and the further fact that the Board asserted jurisdiction over the Respondent's business in Case No. 7-RC-2100, the Trial Examiner finds that the Respondent herein is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 388 of the International Molders and Foundry Workers Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES As indicated above we are concerned herein with the allegation that the Respond- ent has refused to bargain collectively with the Union in violation of Section 8 (a) (5) and (1) of the Act. No proper understanding of the issues could be had with- out a chronological resume of the events that led up to the filing of the Union's original charge on August 10, 1953. The record herein shows that pursuant to a petition for certification of representa- tives filed by the Union, the Board conducted a "Representation" hearing thereon at Battle Creek, Michigan, in March 1953.2 Thereafter on April 8, 1953, the Board issued its Decision and Direction of Election in which it found inter alra that the following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. All production and maintenance employees at the Employer's Kalamazoo, Michigan, plant, including plant guards and supervisors as defined in the Act. In addition the Board directed that an election be conducted as early as possible, under the supervision of the Regional Director of the Seventh Region (Detroit, Michigan), to determine whether or not the employees of the Respondent in the above-described unit desired the Union herein to represent them as their collective- bargaining representative. Pursuant to the Board's directive the Regional Director conducted an election among the Respondent's employees in the above-found ap- propriate unit on April 29, 1953. An examination of the tally of ballots shows that at the time of the election there were four employees in the unit. The election re- sult was as follows: 3 for the Union and 1 against it. An examination of the "Certification on Conduct of Election" shows that James Crocker and Mark Stevens, employees of the Respondent, and of whom more anon, signed it for the Union. Consequently, since there were only four employees in the unit, 50 percent thereof actively participated in the election process, and certified that it was conducted in a fair and impartial manner. On May 7, 1953, the Board certified the Union as the exclusive representative of the Respondent's employees in the above-described ap- propriate unit. While we are at it, and without more ado, the Trial Examiner finds that the unit found by the Board in Case No. 7-RC-2100 (described above), is the appropriate unit for the purposes of collective bargaining. Shortly after the ballots were counted and it had been determined that the Union had been selected as the exclusive bargaining representative of the employees, W. D. Roberts and Clarence Rutledge, representatives of the Union, informed the Respond- ent's attorney, Albert A. Epstein and Frank Marrone, its plant manager, that they would draft a proposed contract and send it to the Respondent for consideration at an early date. On May 14, 1953, Rutledge, business agent of Local No. 388, sent 3 Case No. 7-RC-2100. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a letter to Marrone in which he requested an early meeting with representatives of the Respondent to discuss contractual relations, and attached thereto a copy of a proposed agreement. On May 21, 1953, Epstein on behalf of the Respondent acknowledged receipt of the proposed agreement in a letter to Rutledge. On or about May 28, 1953, Rutledge called Epstein and requested a date for a conference with the Respondent's representatives for the purpose of negotiating a contract. The upshot of their conversation was that a meeting between the parties was arranged for June 10, 1953, to be held at the Respondent's offices in Kalamazoo. At this time the Trial Examiner is convinced that in order to have a proper under- standing of his ultimate disposition of the issues involved herein that mention should now be made of a stipulation that was entered into by the parties at the hearing herein as regards the number of employees of the Respondent in the appropriate bargaining unit from or about April 29, 1953, to August 10, 1953, the date the Union filed its original charge against the Respondent. As indicated above the importance of this stipulation will be apparent hereinafter. For this reason the Trial Examiner is also convinced that it should be set forth herein as it was stated to the record by counsel for the Respondent at the hearing. It follows below: Mr. EDES: Mr. Examiner, it is stipulated by and between counsel for the re- spective parties, as follows: That as of the date of the election, there was in the employ of the company in the unit found to be appropriate for collective bargaining purposes, the following employees : Mr. Schaffer, Mr. Long, Mr. Stevens, and Mr. Crocker. It is further stipulated that as of June 22nd, 1953, Mr. Long quit the employ of the company; that as of July 14th, 1953, the employees in the bargaining unit were Mr. Schaffer, Crocker, Stevens and a Mr. Dooley who was hired on April 25, 1953, and a Mr. Grimm who was hired on June 6, 1953. It is further stipulated between the parties that on July 18, 1953, Mr. Grimm quit, and that on July 24th Mr. Schaffer and Dooley quit. It is further stipulated that as of July 25, 1953, therefore, there was left in the employ of the company in the appropriate unit, only Messrs. Crocker and Stevens. It is further stipulated that on August 11, 1953, the company hired Mr. George Nestle, Mr. Morton Dinock, Mr. Richard Peterson and Mr. Max Argo. Trial Examiner SHAW: Now before I approve the stipulation, did I under- stand you to say that Crocker had quit? Mr. EDES: No, sir. Mr. FARKAS: No, sir. Mr. EDES: I said as of July 25, 1953, the only employees in the employ of the company as of that date was Messrs. Stevens and Crocker. Mr. Stevens and Mr. Crocker are still employed and were employed throughout this entire period. Trial Examiner SHAW: Very well. You join in the stipulation as stated in the record, Mr. Farkas? Mr. FARKAS: Yes. As indicated above the first meeting between the parties was held on June 10, 1953. Thereafter they met on June 30, July 14, and August 19, 1953. All of the meetings were held at the Respondent's offices in Kalamazoo, Michigan. The fourth and final meeting was on August 19, 1953, at which time the representatives of the parties met with a Dr. Cranston, a member of the Michigan Mediation Board, whose services had been requested by the Union in its effort to resolve the difficulties that had arisen between the parties. Each meeting will be discussed in detail hereinafter. As indicated above the first meeting between the parties was held on June 10, 1953, at the Respondent's offices in Kalamazoo. The Respondent was represented by its counsel, Albert A. Epstein, Esq., of Chicago, Illinois, and Frank Marrone, its plant superintendent. The Union was represented by W. D. Roberts and Clarence Rutledge, officers of the Union, and the plant committee consisting of employees, James T. Crocker, Mark Stevens, and Julius Schaffer. At this time the Trial Exam- iner desires to point out, for reasons which will be apparent hereinafter, that at the June 10, 1953, meeting, 3 of the 4 employees or 75 percent thereof in the unit were present and witnesses to all that occurred during the discussions between Epstein and the officers of the Union. Epstein arrived by train from Chicago at about 1 p. in. At the onset of the meet- ing he informed those present that he expected to return to Chicago, at 2:55 p. in., and that the meeting would be limited to that extent. He then took off his wrist SAM'L BINGHAM'S SON MFG. COMPANY 515 watch and placed it on the table for all to see.3 He then proceeded to tell the union representatives and the employees present in substance that he as well as the officials of the Company were of the opinion that the Union did not represent a majority of the employees in the unit and that for this reason the Respondent intended to file a petition with the Board for a new election. He also told those present that the Respondent was in no position to grant a wage increase , and that they definitely would not enter into any contract with the Union that contained any type of a union- security clause. From what the Trial Examiner gleans from the record little or no progress was made at this meeting , primarily because of Epstein's insistence upon discussing the "questionable" status of the Union and the determination of the Respondent to file a petition with the Board for a new election among the employees. Epstein appeared at the hearing herein not as participating counsel , but as the Re- spondent's principal and only witness. In his testimony he offered the following explanation of his conduct at the meeting on June 10, particularly as regards the ques- tion he raised concerning the Union's certification. Shortly after he received Rut- ledge's letter of May 14, 1953, and the Union's proposed contract, he met with the officials of the Respondent in Chicago . During the course of their discussion the question arose concerning the Respondent's position as regards the Board's certifica- tion of the Union as the sole collective-bargaining representative of its employees. The officials of the Company were concerned because one of the employees who had voted in the election , Mark Stevens , had informed the Respondent sometime in December 1952, that he intended to leave its service sometime in late 1953. Hence if and when he left, there would only be 2 employees at the most who had voted for the Union, since the vote was 3 to 1 and it was assumed that Stevens was a union adherent, since his activities on its behalf were known to the Respondent, for example he had been an observer for the Union at the election, which of course was a matter of common knowledge . This being so, when Stevens left and a new man took his place, the Union , at the most, would represent only 50 percent of the employees . Epstein's testimony in this regard is most interesting . It follows below: Q. (By Mr. Edes .) Will you continue? A. This individual was Mark Stevens who had indicated to the Company in December of 1952 and I believe also in January or the early part of 1953 that he intended to leave the employment of the Company at the end of the calen- dar year 1953 . That was definitely understood and arranged and the question was raised by Mr. Bingham, the President of the Company, and Mr. Crews the Vice-President about the representation issue where an individual who was in- volved in the unit would not be with the Company for the entire term of a proposed contract. They said to me and we discussed this question as to whether or not he was properly included in the unit to begin with and did this vote resolve in a situ- ation where the Company was dealing with a Union which would represent the real majority of its normal staff throughout the period of the contract. As a matter of fact we had discussed this question before the election and I have personally discussed the matter with officials of the National Labor Re- lations Board in Chicago to determine whether or not we would have a proper challenge after the election itself on that ground. There was some serious ques- tion about that so we did not raise that point at the election, did not challenge the eligibility of the individual but thereafter in the discussion you asked about, that point came up with the Company Q. Did you discuss the question with any representatives of the National La- bor Relations Board in Chicago following receipt of the request by the Union for collective bargaining conferences? A. Yes, I did. Q. And what did you decide to do on behalf of the Company following your discussions with such officials? A. I recommended to the Company after my discussion with the NLRB offi- cials that this point would probably not prevail and that we should recognize the Union and proceed to discuss terms of the contract. Q. Was this decision reached on or before the first meeting that was held by the Union? A. It was reached after the first meeting. 3 Though Epstein denied that he physically removed his watch and placed it on the table, other witnesses at the hearing insisted that he did . The Trial Examiner has considered his denial in the light of the whole record and is convinced and finds that he did, in the mode and manner described by the witnesses for the General Counsel. 344056-55-vol 11t-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. When was the first meeting held? A. June 10, 1953. [Emphasis supplied.] Later on in his testimony Epstein in further explanation of his role in advancing and discussing the issue with the employees and union representatives at the first meeting on June 10, 1953, admitted that he did not formally present this issue to any responsible official of the Board at its Chicago office for determination or opin- ion, but that his entire discussion in this regard was unofficial and with an undis- closed attorney friend of his employed in the Chicago offices. At no time did Ep- stein raise this question with the Detroit offices of the Board, which had complete charge of and jurisdiction over the case. Moreover, this question was neither raised at the representative hearing, Case No. 7-RC-2100, nor was Stevens' vote challenged when he voted in the Board election on April 29, 1953. As the Trial Examiner sees it the principal topic of discussion at the first meeting was the validity of the Union's certification, and the Respondent's intention to have it set aside. Another statement of Epstein's at the meeting, that had an effect on those present, was his query to the Union's representatives as to "why they wanted to monkey around with such a small company anyway." While it may be true that this remark was made in a jesting or facetious manner, nevertheless it was not so taken by the employees who were present. As will be shown hereinafter Stevens and Crocker did not so consider it, and explains their conduct in the early part of August 1953, of which also more anon. It was in the light of this atmosphere that the parties met thereafter. The second meeting was held on or about June 30, 1953. At this meeting the following were present as representatives of the Respondent, Epstein and Marrone. The Union was represented by Rutledge, and employees Schaffer, Stevens, and Crocker. Here again as at the first meeting on June 10, 1953, 3 of the 4 employees in the unit, or 75 percent thereof, were present and participated in the negotiations. Shortly after the meeting got under way Epstein told the union representatives that he had discussed the question concerning the validity of the Union's certification with the Respondent's officials and that they had decided to honor the certification, and that the Respondent would accept the "Recognition" clause in the Union's pro- posed contract. The parties then proceeded to go over the Union's proposals one by one. Some were accepted by the Respondent, some were rejected, and others were tentatively agreed upon, subject to give and take on both sides. Each side set forth its position on those clauses that were in disagreement, and the parties would then go on to the next clause. No agreement was reached as to wages, the Respondent's position being that an increase was not warranted at that time. The Respondent again refused to consider any provision in the contract for union security. After the Union's proposal had been discussed, clause by clause, Epstein agreed to draft a counterproposal embodying therein the Respondent's position on the Union's pro- posals upon which there was disagreement between the parties. It was at this point that the meeting broke up and Epstein left to catch the 2:55 p. m. train for Chicago. As the Trial Examiner sees it the second meeting between the parties was con- ducted in a far more pleasant atmosphere than the first, and representatives of the Union and the employees who were present left the meeting with the impression that a counterproposal would be drafted by Epstein and sent to them for their con- sideration. As indicated above there were several matters in the Union's proposal that were tentatively agreed upon at the meeting, others were rejected by the Re- spondent, and some were accepted in part by it. The primary issues that concerned the Union were wages, union shop, vacations, and overtime pay. These were the matters that the union representatives and the employees who were present at the ne- gotiations expected the Respondent to consider and to set forth its position in its promised counterproposal. The third meeting of the parties was held on July 14, 1953, at the Respondent's offices in Kalamazoo. The Union was represented by Elmer Reynolds, repre- sentative of the International, and Clarence Rutledge, business agent of Local 388, and the employees were represented by, Mark Stevens, James Crocker, and Julius Schaffer, or 60 percent of those employed in the appropriate unit at the time. The Respondent was represented by Albert Epstein, Esq., its counsel, and Frank Marrone, its plant superintendent. At the onset of the meeting the union representatives asked Epstein for the Respondent's counterproposal, which he promised to prepare and furnish the Union a copy of at the meeting on June 30, 1953. Epstein informed those present that he had not yet prepared it. Reynolds then told him that if such a proposal was not received by the Union by July 27, 1953, that the Union would strike the plant. Epstein promised the union representatives that they would have it before July 27. The parties then proceeded to go back over the Union's proposal in much the same manner as that followed in the previous meeting on June 30, 1953. SAM'L BINGHAM'S SON MFG. COMPANY 517 During the course of the discussions Epstein offered a 5-cent per hour wage increase, which was not acceptable to either the union representatives or the employees who were present, particularly because the Union had requested a 25-cent per hour in- crease in its original proposal. From what the Trial Examiner gleans from the record nothing of real importance was accomplished at the meeting except Epstein's offer of a 5-cent per hour wage increase. As in the first two meetings the parties started their negotiations at 1 p. m. and adjourned around 2:45 p. in., so that Epstein could catch his train for Chicago. Though the representatives of the Union made no serious objection to the limited time allotted to the meetings by Epstein, nevertheless, this factor was not overlooked by the Respondent's employees, who were in at- tendance at this and the previous meetings, and was a factor in their subsequent conduct in the early part of August 1953, as will be shown hereinafter. Shortly after Epstein returned to Chicago he received a telephone call from one of the Respondent's top officials, who informed him that Marrone had advised the Chicago office that there was a possibility of a strike at the Kalamazoo plant. The upshot of this incident was that the Respondent authorized Epstein and Marrone to increase its wage offer from 5 cents to 10 cents per hour. Epstein then called the Union's offices in Kalamazoo and informed Rutledge of the Respondent's offer and in addition assured him that he would draft a counterproposal and forward it to the Union for its consideration within the next few days. He confirmed his conversation with Rutledge by letter dated July 21, 1953. The Trial Examiner deems this letter of sufficient importance, in view of his ultimate findings herein, to insert it herein. It follows below: EPSTEIN, EDES & ROSEN Attorneys and Counsellors 208 South LaSalle Street Albert A. Epstein Chicago Samuel Edes Arnold A. Rosen Telephone State 2-8277 July 21, 1953. Mr. CLARENCE RUTLEDGE International Molders and Foundry Workers Union, Local 398 326 N. Rose, Kalamazoo, Michigan DEAR MR. RUTLEDGE: This will confirm our telephone conversation of this date in which the undersigned transmitted the proposal for a contract between Sam'l Bingham's Son Mfg. Co. and the Union, embody items previously agreed upon, the company's proposals in connection with the Union's security clause, overtime vacation and duration of contract, which were made by the company in response to the Union's proposal, and the proposed wage increase of ten cents (100) per hour. These items will be embodied in a draft of a contract which we are preparing for Company approval and which will be forwarded to you in the next few days. Very truly yours, EPSTEIN, EDES & ROSEN (Signed) Albert A. Epstein (Typed) ALBERT A. EPSTEIN. According to Epstein he then proceeded to draft a counterproposal, in which he set forth the Respondent's position on the disputed clauses in the Union's proposal, and embodied therein those clauses-upon which the parties had reached agreement at the meeting on June 30, 1953. This counterproposal however was never submitted to the Union for examination and perusal, and as far as the record herein is con- cerned neither the responsible officials of the Union nor any of the Respondent's em- ployees in the appropriate unit even knew of its existence until it was offered in evi- dence at the hearing herein on November 13, 1953.4 * Though the Trial Examiner permitted the purported counterproposal to be admitted in evidence, this is not to say that he considers it of any probative value, as a matter of fact he is convinced and finds that It is utterly devoid of such when considered in the light of the record as a whole, particularly Epstein's own testimony both on direct and cross-examination. It must be borne in mind that there is a difference between the ad- missibility of a document in evidence and its probative value. Here the document was offered to explain certain conduct of the Respondent's principal negotiator, Epstein, and not to substantiate the fact that the counterproposal as such had actually been served upon the Union for its consideration. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Epstein in his testimony before the Trial Examiner at the hearing herein offered the following explanation as to why he did not submit the Respondent 's counterpro- posal to the Union for its consideration as he had promised to do on at least three occasions . He testified that shortly after he had drafted the counterproposal that he received a telephone call from a Mr. Crews, the Respondent 's vice president, who, informed him that there then existed certain conditions at its Kalamazoo plant which again raised the question as to whether or not the Union represented a "real" ma- jority of the employees in the appropriate unit or "as a matter of fact " any of those then employed by the Company. After further discussion with the Respondent's officials including President Bingham it was decided that in the circumstances the Re- spondent would again challenge the ". . . jurisdiction of the Union and not submit this proposed contract or any contract, and we discussed the method or mechanics available for taking up the issue on the representation question." The "new and changed" conditions that Crews had reference to was the fact that " . on the 24th of July which had been the payday, or the end of the week, several individuals had quit the Company's employment, and that . . . so at the end we were discussing this proposal there were two individuals left in the employment in the Company , Stevens and Crocker." 5 In view of this situation the Respondent with Epstein as their coun- sel and advisor concurring made the following decisions: Trial Examiner SHAW : Go ahead, proceed. The WITNESS : And Crews said to me considering that we normally have five or six employees and these would all have to be hired as new people that it seemed foolish to him to offer a contract to a Union which represented clearly a minority of the people in the plant due to this turnover which had occurred since the election, and he said I can't see my way clear nor could Mr. Bingham as a practical matter they said regardless of what the legal aspects were for which they relied upon as for advice on that score , they said here we are dealing with two men who obviously are a minority of the group which will work under the terms of this contract. We considered that matter and we decided we should take steps to balance that situation because it seemed ridiculous . [Emphasis supplied.] Having reached the above decision Epstein sent the Union the following letter on August 3, 1953: August 3, 1953. MR. W. D . ROBERTS International Molders and Foundry Workers Union, Local 398 326 N. Rose, Kalamazoo, Michigan DEAR MR. ROBERTS: Due to the fact that since the NLRB election practi- cally all of the employees in the unit at the Kalamazoo plant of Sam'l Bingham's Son Mfg. Co. have resigned, there is a serious question raised regarding the present validity of the certification by the National Labor Relations Board. The extreme turn-over of personnel constitutes such an unusual circumstance as to seriously affect the status of the Union's certification. The company is therefore studying this situation in order to determine what further steps to take in its current relations with the Union because of these developments. Very truly yours, EPSTEIN, EDES & ROSEN AAE:ht ALBERT A. EPSTEIN. Before sending the above letter Epstein called the Union's offices in Kalamazoo, and talked to W. D . Roberts, one of the Union's International representatives, and informed him in substance of the Respondent's decision to again raise -the question with the Board as to whether or not the Union represented a majority of the em- ployees in the appropriate unit. He also accused the Union of being responsible for certain of its employees leaving the Company's services since the negotiations began on June 10, 1953. The upshot of the incident was, that the Union after receiving Epstein's letter, and weighing his remarks to Roberts, filed the unfair labor practice charge upon which this proceeding is predicated on August 10, 1953. The record clearly shows that by the time Epstein got around to reasserting the Respondent's position that as a matter of law it was under no duty to bargain with -the Union because it did not represent a majority of the employees in the appro- priate unit , and of its intention to petition the Board for a new election due to the "changed conditions" mentioned by Epstein, first at the meeting in June 10 and next in his conversation with Roberts on or about August 3, 1953, that the employees. 5 Quoted portions from Epstein's testimony on direct examination. SAM'L BINGHAM'S SON MFG. COMPANY 519 who were still employed in the unit had reached the point where they had had enough, so to speak, and proceeded to take the question raised by Epstein into their own hands. With recent events in mind, Stevens and Crocker wrote a letter to the Board for the purpose of ascertaining once and for all whether or not the Respondent could continually raise the question of the status of the Union as their chosen and certi- fied bargaining agent. In other words they were disgusted with the way the bar- gaining negotiations had been handled, and were particularly irked by Epstein's con- duct, particularly in limiting the bargaining sessions to 11/2 hours between trains, and as they saw it his constant bickering over the Union's status as the certified bargaining representative. Their attitude as regards the whole situation is in the considered opinion of the Trial Examiner best told in Crocker's own words. Ac- cordingly, an excerpt from his testimony in this regard follows below: Q. Who drew up the letter that was sent to the Board? A. Mark Stevens and myself. Q. You both drew it up? A. Yes. Q. Who wrote it out? A. I think I did the spelling and Mark did the writing. Q. Let me see if I can figure that out. A. Sort of a Stevens-Crocker combination, I guess. Q. You remember exactly what was in that letter? A. No, I wouldn't say that I remember just word for word. Q. Tell me what it was as well as you can remember. A. Well, we wrote and asked them about a new election, due to the circum- stances which had arisen in the place, since this union had been there, and we wanted to know if it was possible to get another election, and if so let that letter be used for such purpose. Q. So that you wanted to know something more than whether it would be possible to have another election. You wanted in fact to have another election? A. We wanted to know if another election could be had. Q. And you wanted that letter to be used for that purpose? A. If so Q. For the purpose of what? What did you mean exactly? You wanted the Board to have another election? A. We had heard so much harping about petitioning the Board for another election, and nobody seemed to know anything about it, we wrote in for our ownself to find out if it could be done. Q. And if it could be done- A. As in the case of our ownself we wanted to find out for our own per- sonal mind, opinion. Q. And if it could be done, you wanted another election held, is that right? A. It didn't bother us because there wasn't but two there any way. Both Crocker and Stevens in their testimony insisted that they never at any time either resigned from the Union or notified Marrone or any other representative of management that they had done so. Both admitted on cross-examination that they did tell Marrone in substance sometime in late July 1953, that they were fed up with the whole affair, but at the same time they placed the onus on the Respondent and its representatives. As the Trial Examiner sees it both had reached the point where they felt that the Union was "impotent" so to speak, and unable to thwart Epstein's re- peated threats to have it decertified as their bargaining represenative. Since neither of them had had any experience in such matters their feelings in this regard are un- derstandable particularly since both were witnesses to what had transpired at each and every bargaining session between the Union and the Respondent. Their testi- mony as regards their attitude towards the Union, and their conversations with Mar- ron stands uncontradicted and undenied in the record. Moreover Marrone was present throughout the hearing herein and did not choose to testify. In such cir- cumstances the Trial Examiner credits their testimony in this regard in its entirety and finds that neither Stevens nor Crocker informed Marrone or any other represent- ative of the Respondent prior to August 3, 1953, that they had repudiated the Union as their chosen bargaining agent, and that they wrote the Board the letter referred to above solely for the purpose of ascertaining whether or not the Respondent could have the election of April 29, 1953, set aside in accordance with the "threats" repeat- edly uttered by Epstein at the bargaining meetings.6 6 Both Crocker and Stevens in their testimony referred to Epstein's reference to the Union's status as the bargaining representative as "continual threats" and similar terminology. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While it is true that Epstein did tell the union representatives and the employees' committee at the second meeting on June 30, 1953, that the Respondent would recog- nize the Union as the sole collective-bargaining agent for its employees in the unit, and that it would accept the "Recognition" clause in the Union's proposed agree- ment, nevertheless the Trial Examiner credits the testimony of Stevens and Crocker that Epstein did raise the question at each and every bargaining session beween the parties, and it is so found. Sometime in the latter part of July or the early part of August 1953, W. D. Roberts, one of the Union's representatives contacted the Michigan State Mediation Board and requested that it furnish a mediator to act as a "go-between" between the Union and the Respondent and assist the parties in resolving their differences. In the interim the Union received Epstein's letter of August 3, 1953, in which he again questioned the Union's status as the certified bargaining agent of the employees in the unit. Shortly thereafter on August 10, 1953, the Union filed the unfair labor practice charges against the Respondent upon which the complaint herein is predicated. Shortly after Roberts requested the assistance of the Michigan State Mediation Board, it assigned a Dr. Cranston, one of its mediators, to the case and a meeting between the parties was tentatively set for August 13, 1953. Epstein, due to unfore- seen difficulties, was unable to attend the meeting on that date and it was rescheduled for August 19, 1953, at which time the parties met with Dr. Cranston at the Re- spondent's offices in Kalamazoo. The meeting was held as scheduled on or about August 19, 1953. Present for the Union were Roberts and Rutledge, for the employees, Stevens and Crocker, and for the Respondent, Epstein and Marrone. After a careful perusal of the record the Trial Examiner is convinced that an account of what transpired at the meeting with the State Mediator, Dr. Cranston, is best told in Epstein's testimony before the Trial Examiner. Consequently perti- nent excerpts therefrom follow below: A. The State Mediator indicated that-indicated his authority and position in the matter and said he would like to get the parties together and then the question arose which the Union raised about reference to our refusal to recog- nize the Union. I went into detail then with the Commissioner and brought him up to date on the Company's position, setting forth the fact that various employees had left and also setting forth an item which had come to my atten- tion by virtue of telephone conversations with Mr. Marrone regarding the status of the two employees in the plant during the early part of August, the only two employees. At that time Mr. Marrone had called me some time during-I am not sure of the exact date. I would say it was between the 5th and 15th of August, in that period. Roughly around the 10th of August and he told me that he had been requested by the two employees in the plant, Crocker and Stevens, as to the machinery available for filing a Petition with the National Labor Rela- tions Board in order to eliminate the Union as their representative. Mr. FARKAS: I will object to that. Mr. Marrone is in the room and he can testify to what was discussed. I think it is hearsay. Trial Examiner SHAW: It is not hearsay at all. Mr. FARKAS: Mr. Marrone is here to testify. Trial Examiner SHAW: That is not the test of hearsay. The witness is testi- fying what he told Cranston. It may be hearsay, as to the truth of whether or not Marrone said that, but it is not hearsay as to what this witness told Crans- ton. It is a conversation had with Cranston, is that right? The WITNESS: Yes. Trial Examiner SHAW: Overruled. That is not hearsay. The WITNESS: I told Doctor Cranston of the fact that not only was there a question as to whether the people in the plant, that is whether a majority of them because of turnover decide to have the Union, but there was a serious question as to whether the people who were in the plant wanted the Union to represent them, and I said on that basis the Company was challenging the certi- fication and I said to him further that inasmuch as the Union had filed charges against the Company alleging primarily refusal to bargain that that issue of our refusal to recognize the certification or to honor it would very well be taken up because that was primarily our defense in that situation and that is the place it should be ironed out and therefore I was in no position to discuss terms of contract which he was trying to get going, and I respectfully set forth my position and indicated that there was no basis for discussing terms at that point, that the matter undoubtedly would be settled by the Board in these pro- ceedings which the Union had initiated. [Emphasis supplied.] SAM'L BINGHAM'S SON MFG. COMPANY 521 Though Epstein later on in his testimony denied that he stated to those present at the meeting with Dr. Cranston that the reason for the Respondent's refusal to negotiate further with the Union was because it had filed unfair labor practice charges with the Board, the Trial Examiner does not credit his testimony in this regard and finds that he did make such a statement during the course of the meeting. The Trial Examiner not only relies upon the testimony of Roberts, Rutledge, Stevens, and Crocker in reaching this conclusion but upon Epstein's own testimony as well, and directs attention to the excerpt therefrom that appears herein immediately above particularly where emphasized. As the Trial Examiner sees it there is little conflict between Epstein's version as regards what transpired at the meeting with Dr. Cranston and that of the witnesses who testified on behalf of the General Counsel, except as noted above and as regards the conduct and statements made by Mark Stevens, one of the employees who was present as a member of the negotiating committee. According to Epstein, Stevens, speaking for Crocker and himself, told Dr. Cranston that "... they no longer were interested in having the Union represent them." In the main Stevens and Crocker testified to the contrary. Stevens' version of what transpired at the meeting with Dr. Cranston is important because it is at odds with that of Epstein as regards his intention to resign from the Union. Consequently the Trial Examiner feels compelled to set forth herein below an excerpt of his testimony in this regard: A. Mr. Epstein stated he wasn't in position to bargain with the union due to the fact that the union did not have a majority in the plant at that time, and he again questioned the right of the certification of the union. Q. Did anything else take place? Did Mr. Cranston say anything? A. Yes, the discussion at this meeting was a discussion in an effort to get management and the union together on some of the different points, and to find out why they couldn't agree, and the main subject we talked about that day was shop security, union security, whereupon Mr. Cranston asked Mr. Epstein if they would agree to a modified security form in the contract, and Mr. Epstein then stated again that he wasn't in any position to do anything because of the unfair labor charge, and through the process of it I said definitely that I was done with both companies, management and labor, for the stalling tactics of management and the non, as far as I was concerned, non-functional type of the union because the company had delayed every action which we had tried to do to get together, and the union couldn't seem to do anything about it, so as far as I was concerned, at that time I was pretty hot under the collar and I was done with both of them. Trial Examiner SLAW: A plague on both your houses. The WrrNESS: Yes, burn down both of them. Q. (By Mr. Farkas.) Mr. Stevens, at the time of the last meeting were you a member of the union? A. 1 was. Q. Are you a member of the union today? A. In good standing. Q. What time did that meeting break up? A. The meeting broke up in time for Mr. Epstein to catch the train back. That I remember very definitely because the time was getting short, and Mr. Epstein mentioned the fact that he had to catch the train back, and so the meeting was adjourned. [Emphasis supplied.] Epstein in his testimony as regards Stevens' statement to Dr. Cranston concern- ing his attitude towards the Union at the meeting testified that Stevens spoke for Crocker as well as himelf. The Trial Examiner has carefully checked the official transcript of the record and is convinced and finds therefrom that such was not the case. True, both Stevens and Crocker. as heretofore indicated and discussed above were by this time pretty well "fed up" with the whole affair, but the record does not show that it was because of the Union's inability to function as their bargaining agent, but on the contrary it was due to the "stalling tactics of management" as Stevens so aptly described it. Nothing was accomplished at the meeting with Dr. Cranston, and the meeting broke up as usual at about 2:45 p. in. so that Epstein could catch his train for Chicago. There have been no further meetings between the parties. Concluding Findings From the foregoing findings of facts the Trial Examiner is convinced that by engaging in the above-described conduct the Respondent herein failed and refused 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain collectively with the Union as the certified bargaining agent of its em- ployees in the above-found appropriate unit. Many factors have influenced him in reaching this conclusion. Indeed he is convinced that the testimony of the Respond- ent's principal witness at the hearing herein, Albert Epstein , its counsel, compels such a finding. The record clearly shows that Epstein , an attorney, was not only familiar with the Act, and its rules and regulations, but had had long experience in such matters. As will be shown below his statements as regards the questionable legality of the Board's certification at practically all of the bargaining session , had a demoral- izing effect on a majority of the employees in the unit, who participated as the "employees bargaining committee" at each of the meetings. While it is true that the representatives of the International Union who participated in the meetings had had experience in such matters comparable to that of Epstein, nevertheless they too were at a loss to combat, what the Trial Examiner finds to have been, a calcu- lated maneuver on the part of the Respondent to delay and destroy the Union's effectiveness as the employees' chosen bargaining agent. In other words Epstein's conduct was of such a nature that it left a deep impression upon the employees who were present . Here to them at least was demonstrable evidence that the Respond- ent never had any real intention to bargain with the Union, but would resort to every conceivable "legalistic" weapon at hand as a means of delaying and disrupting genu- ine collective bargaining by what a Supreme Court Justice has recently so aptly described as a "bog of logomachy." As indicated above here was demonstrable evidence not only to the Union, as the certified agent of the employees but of far greater importance to its principal, a majority of the employees in the unit, that the Respondent had no real intention of ever reaching an agreement with the Union. Rarely if ever will we find a case such as this where both the principal, the employees, and its agent, the Union, par- ticipated together in the bargaining negotiations . In such circumstances one is not required to "infer" that certain conduct of the Respondent "tended to" or "it may reasonably be inferred," that the conduct of the Respondent "interfered with, re- strained, and coerced" its employees in the exercise of the rights guaranteed in Section 7 of the Act, for the simple reason that the employees themselves testified at the hearing herein as to the "effect" the Respondent's conduct had upon them not only as individuals but as a "majority " of the employees in the appropriate bargain- ing unit. The vice of the Respondent 's conduct was that it implanted in the minds of its employees that it was useless for them to exercise the rights guaranteed them in Section 7 of the Act. It must be remembered that 75 percent of all the employees in the unit were present at the first meeting on June 10, 1953, when the Respondent for the first time raised the question concerning the legality of the Union 's certifica- tion. It had failed to raise the question as regards Stevens' status as an "employee" within the meaning of the Act either at the representation hearing, Case No 7-RC- 2100, or challenged his ballot at the Board ordered and conducted election on April 29, 1953, or objected to his participation in the election process by acting as an ob- server for the Union at the election. To now raise such a question at the first bargain- ing meeting between their certified bargaining agent and their employer was a shock to say the least to the employees who were present, which as indicated above con- stituted 75 percent of those in the unit. Since they alone were the principals it is little wonder that Stevens and Crocker eventually became disgusted with the whole affair as evidenced by their subsequent action . It also must be borne in mind that the question as regards the legality of the Union's certification as raised by the Respondent at the first and subsequent meetings was not only frivolous and a sham on its face but this fact was well known to it at the time it raised the issue. There is no provision in the Act for an employer to question the legality of a Board certifica- tion in the mode and manner suggested by Epstein at the first meeting. The time for the Respondent to have raised the question as to Stevens' status as an "employee" was either at the representation hearing, or to challenge his ballot at the election. Hence the Respondent by failing to exhaust or even to attempt to avail itself of any of its administrative remedies was in no position to later complain as to. the legality of the Board's certification. Again its contention as to Stevens and his speculative status a year in the future was not only frivolous but of such a "nebulous" nature that even Epstein its own counsel was forced to admit to the Union that its position as regards the legality of the certification was devoid of merit at a subsequent meeting on June 30, 1953. While it is true that Epstein informed the Union that the Respondent had aban- doned its position in this regard at the second meeting on June 30 , 1953, neverthe- less it did raise it again, particularly in its letter to the Union dated August 3, 1953. This time, however , the issue was predicated on the theory that since by this time SAM'L BINGHAM'S SON MFG. COMPANY 523 there were but two employees in the unit, that if and when new employees were hired in the future, then the Union would not represent a majority when it had se- cured a full complement of employees. It raised the question in face of the fact that it well knew at the time that the Union then represented 100 percent of the employees.? The vice of its position as described above and which it took at the meeting with Dr. Cranston of the Michigan State Mediation Board is the fact that it presumed to usurp a provision in the Act that is reserved exclusively for "employees." The only provision in the Act that permits an employer to petition the Board for an elec- tion among his employees is found in Section 9 (c) "(B)," which provides inter alia that an employer may file a petition for the determination of representatives when . one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in Section 9 (a)." Since there is not a scintilla of evidence in the record that such a claim was ever made on the Respond- ent from the date of the Union's certification by the Board on May 7, 1953, to and including the time of the hearing herein by either an individual or a labor organiza- tion it is obvious that this position or contention of the Respondent was likewise without merit. Its second contention at the meeting with Dr. Cranston was in substance that since the Union had filed unfair labor practice charges against it, it was under no duty to bargain with the Union until the matter had been litigated by the Board. That its position in this regard was violative of the Act is so well settled that the Trial Examiner deems it unnecessary to belabor this report with numerous citations and excerpts from Board and court decisions in support of his ultimate findings in this regard. Suffice it to say that the filing and pendency of unfair labor practice charges does not relieve an employer of his duty to bargain collectively.8 The gravamen of the above-described conduct of the Respondent is that it inter- fered with and restrained the employees in the appropriate unit in their efforts to exercise the rights guaranteed them in Section 7 of the Act, by planting in their minds the seeds of distrust of their chosen and certified bargaining agent. That the Respondent succeeded in doing just that is evidenced by the testimony of Stevens and Crocker which has been discussed in detail above. In the considered opinion of the Trial Examiner the above-described conduct of the Respondent was not only "indicae" of its failure to bargain in good faith with the Union, but was likewise vio- lative of Section 8 (a) (1) of the Act in that it was the constant "bickering" over the legality of the Union's certification that caused Stevens to temporarily abandon the Union at the meeting with Dr. Cranston, on August 19, 1953. In other words the Respondent's conduct interfered with the relations between the employees and their bargaining agent, which the Trial Examiner is convinced was in and of itself viola- tive of the Act. The Trial Examiner has considered the Respondent's contention that it "did recog- nize, meet with, and bargain collectively and in good faith in every particular with the Union until such time as the Union ceased to represent a majority of the em- ployees in the unit [found above to appropriate] ... at which said time Respondent was under no obligation to continue to bargain with the Union ," and its brief in support of its contention. He has also considered the Respondent's contentions and arguments in support of its theory that a Board's certification of a labor organization is valid only so long as the, employees who participated in the election remain employees, and that thereafter should there be a turnover in personnel and new employees hired that at this point the duty of an employer to bargain with a certified union ceases because there is a presumption in such circumstances that the union has lost its majority and consequently cannot legally thereafter function as the bargaining agent for the employees in the unit regardless of the lapse of time between the certification and the turnover of the employees in the unit. Here a period of less than 3 months. The new and changed condition or "unusual" circumstances being a loss of 2 em- ployees out of 4 who were in the unit at the time the Union was certified. In the considered opinion of the Trial Examiner this contention of the Respondent is like- wise without merit and in contravention to the decisions of the Board and courts in cases too numerous to mention or belabor this report with endless citation, rationale, and excerpts therefrom as authority. Suffice it to say that the cases cited by the Re- spondent in its brief in support of its contention are in the considered opinion of the Trial Examiner not applicable to the facts found here. Particularly the Mid- 7 That is as of August 3, 1953 1 See N L R B v Taormina Company, svpra, and cases cited therein 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continent Petroleum Corporation case,9 there the employees themselves repudiated the union shortly after it was certified by the Board, and there was no substantial evidence that the employer had engaged in unfair labor practices to which the union's loss of majority could be attributed. Such a factual situation is not found here. Moreover the Trial Examiner finds that there exists here no "new or changed condition" that would justify the Respondent to refuse to bargain further with the Union. If one were to adopt the Respondent's theory that each and every pay period that evidenced a material change in the personnel of its employees within the period of a year after a union was certified by the Board, was justification for breaking off negotiations with the certified bargaining agent, and a defense to a charge of violation of Section 8 (a) (5) of the Act, it would create chaos, and completely defeat the stated purposes of the Act What the Respondent completely disregards and fails to take into consideration is the fact that if there is a loss of ma- jority representation in the unit found appropriate it is for the employees to raise the question, not the employer. As indicated above the employer can only raise the question of representation in the circumstances set forth in the Act. This is not to say however that in a situation where a union has actually lost its membership, that an employer must sit idly by and continue to bargain indefinitely with a certified agent. His remedy in such a situation is to refuse "in good faith" to recognize the union in such circumstances. Such a situation does not exist here. Again as indicated and discussed above, one of the principal arguments advanced by the Respondent in its brief in justification of its refusal to "bargain" further with the Union is that "new and changed conditions" and/or "unusual circumstances" in its Kalamazoo plant warranted it in assuming this position. The "conditions" and "circumstances" being the resignation of 2 of the 4 employees in the appropriate unit in the latter part of July 1953. The fallacy of its argument in this regard is that, (1) the issue was not raised in "good faith"; 10 and (2) no such "conditions" or "circumstances" in fact existed at the time it raised the issue on or about August 3, 1953.11 For these reasons the Trial Examiner must reject its contention in this regard. As the Trial Examiner sees it the Respondent by merely going through the "for- mality" of bargaining does not constitute compliance with the requirement of the Act. There must be good-faith bargaining with a sincere and genuine effort to reach an agreement. Then, if after such bargaining no agreement is reached, there is no vio- lation of the Act. Such an atmosphere did not exist here The evidence is to the contrary. What constitutes good-faith bargaining has always been a difficult question to resolve. In the considered opinion of the Trial Examiner, the yardstick, so to speak, by which the conduct of the parties is to be governed was well stated by the Board in the Reed and Prince case, there the Board, inter alia, had the following to say: In such a case the question is whether it is to be inferred from the totality of the employer's conduct that he went through the motions of negotiations as an elaborate pretense with no sincere desire to reach an agreement if possible, or that it bargained in good faith but was unable to arrive at an acceptable agree- ment with the Union. Particularly in this area of mixed fact and law, a court will not lightly disregard the overall appraisal of the situation by the Labor Board. [Emphasis supplied.] N. L. R. B. v. Reed and Prince Mfg. Co., 205 F. 2d 131 (C. A. 1). In view of the foregoing, and upon the entire record considered as a whole, the Trial Examiner is convinced and finds that Respondent by the totality of the conduct described above, and particularly by its repeated "bickering" over the legality of the Board's certification of the Union at the "bargaining" meetings, and its refusal to meet with the Union during the pendency of the unfair labor practice charges filed against it by the Union on August 10, 1953, that it failed and refused to bar- gain with the Union in good faith, and that by such conduct violated Section 8 (a) (5) and (1) of the Act. While it is true that the General Counsel has alleged many other specific violations of Section 8 (a) (5) and (1) of the Act in his complaint, the Trial Examiner is convinced that no useful purpose would be served by burdening this report with specific findings as to each. Though it well may be that the alleged conduct may have been independently violative of the Act, even so the end result would be the same, that is, the totality of the Respondent's conduct constituted violations of See- See Mid-Continent Petroleum Corp v N L R. B., 204 F. 2d 613 (C. A. 6). io See the Trial Examiner's findings and conclusions, supra. For the Board's reasoning in such situations see Hinde and Dauch Paper Company, 104 NLRB 847. PRECISION SCIENTIFIC COMPANY 525 tion 8 (a) (5) and (1) of the Act. As the Trial Examiner sees it the remarks of Judge Hastie speaking for the Third Circuit Court of Appeals in the Jarka case as regards the insistence of the General Counsel in his argument before that court to make additional findings of violations of 8 (b) (1) of the Act are applicable here. There the court said, inter alia, ". . . We understand that the Board would like to have two strings to its bow. But we have tested the one and found it strong and entirely adequate. That we think is enough for this case. .. ." 12 So is it here. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and -obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, it will be recommended that the Respondent upon request bargain collectively with the Union. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 388 of the international Molders and Foundry Workers Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at Respondents' Kalamazoo branch, including plant clerical employees, but excluding office clerical employees, profes- sional employees, plant guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union was on or about May 7, 1953, and at all times thereafter and material herein the certified exclusive representative for the purposes of collective bargaining of all the employees in the appropriate unit as described immediately above, within the meaning of the Act. 4. By refusing on or about June 10, 1953, and at all times since, to bargain col- lectively with the Union as the certified exclusive representative of all its employees in the unit described in paragraph numbered 2, above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] is See N. L. R. B. v. Jarka Corporation of Philadelphia, et at., 198 F. 2d 618 (C. A. 3). PRECISION SCIENTIFIC COMPANY and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, LOCAL 758. Case No. 13-CA-1441. February 7,1955 Decision and Order On October 21, 1953, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had unlawfully refused to bargain with the Charging 111 NLRB No. 88.